Federal Communications Commission v. Pacifica
Foundation

No. 77-528

SUPREME COURT OF THE UNITED STATES

438 U.S. 726

April 18, 19, 1978 Argued

July 3, 1978, Decided

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.

SYLLABUS:

A radio station of respondent Pacifica Foundation (hereinafter
respondent) made an afternoon broadcast of a satiric monologue,
entitled "Filthy Words," which listed and repeated a variety of
colloquial uses of "words you couldn't say on the public airwaves." A
father who heard the broadcast while driving with his young son
complained to the Federal Communications Commission (FCC), which,
after forwarding the complaint for comment to and receiving a
response from respondent, issued a declaratory order granting the
complaint. While not imposing formal sanctions, the FCC stated that
the order would be "associated with the station's license file, and
in the event subsequent complaints are received, the Commission will
then decide whether it should utilize any of the available sanctions
it has been granted by Congress." In its memorandum opinion, the FCC
stated that it intended to "clarify the standards which will be
utilized in considering" the growing number of complaints about
indecent radio broadcasts, and it advanced several reasons for
treating that type of speech differently from other forms of
expression. The FCC found a power to regulate indecent broadcasting,
inter alia, in 18 U.S.C. 1464 (1976 ed.), which forbids the use of
"any obscene, indecent, or profane language by means of radio
communications." The FCC characterized the language of the monologue
as "patently offensive," though not necessarily obscene, and
expressed the opinion that it should be regulated by principles
analogous to the law of nuisance where the "law generally speaks to
channeling behavior rather than actually prohibiting it." The FCC
found that certain words in the monologue depicted sexual and
excretory activities in a particularly offensive manner, noted that
they were broadcast in the early afternoon "when children are
undoubtedly in the audience," and concluded that the language as
broadcast was indecent and prohibited by 1464. A three-judge panel of
the Court of Appeals reversed, one judge concluding that the FCC's
action was invalid either on the ground that the order constituted
censorship, which was expressly forbidden by 326 of the
Communications Act of 1934, or on the groundthat the FCC's opinion
was the functional equivalent of a rule, and as such was "overbroad."
Another judge, who felt that 326's censorship provision did not apply
to broadcasts forbidden by 1464, concluded that 1464, construed
narrowly as it has to be, covers only language that is obscene or
otherwise unprotected by the First Amendment. The third judge,
dissenting, concluded that the FCC had correctly condemned the
daytime broadcast as indecent. Respondent contends that the broadcast
was not indecent within the meaning of the statute because of the
absence of prurient appeal. Held: The judgment is reversed. Pp.
734-741; 748-750; 761-762.

181 U.S. App. D.C. 132, 556 F.2d 9, reversed.

MR. JUSTICE STEVENS delivered the opinion of the Court with
respect to Parts I-III and IV-C, finding:

1.

The FCC's order was an adjudication under 5 U.S.C. 554 (e) (1976
ed.), the character of which was not changed by the general
statements in the memorandum opinion; nor did the FCC's action
constitute rulemaking or the promulgation of regulations. Hence, the
Court's review must focus on the FCC's determination that the
monologue was indecent as broadcast. Pp. 734-735.

2.

Section 326 does not limit the FCC's authority to sanction
licensees who engage in obscene, indecent, or profane broadcasting.
Though the censorship ban precludes editing proposed broadcasts in
advance, the ban does not deny the FCC the power to review the
content of completed broadcasts. Pp. 735-738.

3.

The FCC was warranted in concluding that indecent language within
the meaning of 1464 was used in the challenged broadcast. The words
"obscene, indecent, or profane" are in the disjunctive, implying that
each has a separate meaning. Though prurient appeal is an element of
"obscene," it is not an element of "indecent," which merely refers to
noncomformance with accepted standards of morality. Contrary to
respondent's argument, this Court in Hamling v. United States, 418
U.S. 87, has not foreclosed a reading of 1464 that authorizes a
proscription of "indecent" language that is not obscene, for the
statute involved in that case, unlike 1464, focused upon the
prurient, and dealt primarily with printed matter in sealed envelopes
mailed from one individual to another, whereas 1464 deals with the
content of public broadcasts. Pp. 738-741.

4.

Of all forms of communication, broadcasting has the most limited
First Amendment protection. Among the reasons for specially treating
indecent broadcasting is the uniquely pervasive presence that medium
of expression occupies in the lives of our people. Broadcasts extend
into the privacy of the home and it is impossible completely to avoid
those that are patently offensive. Broadcasting, moreover, is
uniquely accessible to children. Pp. 748-750.

MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, and MR. JUSTICE
REHNQUIST, concluded in Parts IV-A and IV-B:

1.

The FCC's authority to proscribe this particular broadcast is not
invalidated by the possibility that its construction of the statute
may deter certain hypothetically protected broadcasts containing
patently offensive references to sexual and excretory activities. Cf.
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. Pp. 742-743.

2.

The First Amendment does not prohibit all governmental regulation
that depends on the content of speech. Schenck v. United States, 249
U.S. 47, 52. The content of respondent's broadcast, which was
"vulgar," "offensive," and "shocking," is not entitled to absolute
constitutional protection in all contexts; it is therefore necessary
to evaluate the FCC's action in light of the context of that
broadcast. Pp. 744-748.

MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, concluded that
the FCC's holding does not violate the First Amendment, though, being
of the view that Members of this Court are not free generally to
decide on the basis of its content which speech protected by the
First Amendment is most valuable and therefore deserving of First
Amendment protection, and which is less "valuable" and hence less
deserving of protection, he is unable to join Part IV-B (or IV-A) of
the opinion. Pp. 761-762.

STEVENS, J., announced the Court's judgment and delivered an
opinion of the Court with respect to Parts I-III and IV-C, in which
BURGER, C. J., and REHNQUIST, J., joined, and in all but Parts IV-A
and IV-B of which BLACKMUN and POWELL, JJ., joined, and an opinion as
to Parts IV-A and IV-B, in which BURGER, C. J., and REHNQUIST, J.,
joined. POWELL, J., filed an opinion concurring in part and
concurring in the judgment, in which BLACKMUN, J., joined, post, p.
755. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 762. STEWART, J., filed a dissenting opinion, in
which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 777.

Joseph A. Marino argued the cause for petitioner. With him on the
briefs were Robert R. Bruce and Daniel M. Armstrong.

Harry M. Plotkin argued the cause for respondent Pacifica
Foundation. With him on the brief were David Tillotson and Harry F.
Cole. Louis F. Claiborne argued the cause for the United States, a
respondent under this Court's Rule 21 (4). With him on the brief were
Solicitor General McCree, Assistant Attorney General Civiletti, and
Jerome M. Feit.[*]

*Briefs of amici curiae urging reversal were filed by Anthony H.
Atlas for Morality in Media, Inc.; and by George E. Reed and Patrick
F. Geary for the United States Catholic Conference.

Charles M. Firestone filed a brief for the Committee for Open
Media as amicus curiae.

MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I,
II, III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST joined (Parts IV-A and IV-B).

This case requires that we decide whether the Federal
Communications Commission has any power to regulate a radio broadcast
that is indecent but not obscene.

A satiric humorist named George Carlin recorded a 12-minute
monologue entitled "Filthy Words" before a live audience in a
California theater. He began by referring to his thoughts about "the
words you couldn't say on the public, ah, airwaves, um, the ones you
definitely wouldn't say, ever." He proceeded to list those words and
repeat them over and over again in a variety of colloquialisms. The
transcript of the recording, which is appended to this opinion,
indicates frequent laughter from the audience.

At about 2 o'clock in the afternoon on Tuesday, October 30, 1973,
a New York radio station, owned by respondent Pacifica Foundation,
broadcast the "Filthy Words" monologue. A few weeks later a man, who
stated that he had heard the broadcast while driving with his young
son, wrote a letter complaining to the Commission. He stated that,
although he could perhaps understand the "record's being sold for
private use, I certainly cannot understand the broadcast of same over
the air that, supposedly, you control."

The complaint was forwarded to the station for comment. In its
response, Pacifica explained that the monologue had been played
during a program about contemporary society's attitude toward
la0nguage and that, immediately before its broadcast, listeners had
been advised that it included ++"sensitive language which might be
regarded as offensive to some." Pacifica characterized George Carlin
as "a significant social satirist" who "like Twain and Sahl before
him, examines the language of ordinary people. . . . Carlin is not
mouthing obscenities, he is merely using words to satirize as
harmless and essentially silly our attitudes towards those words."
Pacifica stated that it was not aware of any other complaints about
the broadcast.

On February 21, 1975, the Commission issued a declaratory order
granting the complaint and holding that Pacifica "could have been the
subject of administrative sanctions." 56 F. C. C. 2d 94, 99. The
Commission did not impose formal sanctions, but it did state that the
order would be "associated with the station's license file, and in
the event that subsequent complaints are received, the Commission
will then decide whether it should utilize any of the available
sanctions it has been granted by Congress."[fn1]

In its memorandum opinion the Commission stated that it intended
to "clarify the standards which will be utilized in considering" the
growing number of complaints about indecent speech on the airwaves.
Id., at 94. Advancing several reasons for treating broadcast speech
differently from other forms of expression,[fn2] the
Commission found a power to regulate indecent broadcasting in two
statutes: 18 U.S.C. 1464 (1976 ed.), which forbids the use of "any
obscene, indecent, or profane language by means of radio
communications,"[fn3] and 47 U.S.C. 303 (g), which requires
the Commission to "encourage the larger and more effective use of
radio in the public interest."[fn4]

The Commission characterized the language used in the Carlin
monologue as "patently offensive," though not necessarily obscene,
and expressed the opinion that it should be regulated by principles
analogous to those found in the law of nuisance where the "law
generally speaks to channeling behavior more than actually
prohibiting it. . . . [T]he concept of `indecent' is
intimately connected with the exposure of children to language that
describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory
activities and organs, at times of the day when there is a reasonable
risk that children may be in the audience." 56 F. C. C. 2d, at
98.[fn5]

Applying these considerations to the language used in the
monologue as broadcast by respondent, the Commission concluded that
certain words depicted sexual and excretory activities in a patently
offensive manner, noted that they "were broadcast at a time when
children were undoubtedly in the audience (i. e., in the early
afternoon)," and that the prerecorded language, with these offensive
words "repeated over and over," was "deliberately broadcast." Id., at
99. In summary, the Commission stated: "We therefore hold that the
language as broadcast was indecent and prohibited by 18 U.S.C.
[] 1464."[fn6] Ibid.

After the order issued, the Commission was asked to clarify its
opinion by ruling that the broadcast of indecent words as part of a
live newscast would not be prohibited. The Commission issued another
opinion in which it pointed out that it "never intended to place an
absolute prohibition on the broadcast of this type of language, but
rather sought to channel it to times of day when children most likely
would not be exposed to it." 59 F. C. C. 2d 892 (1976). The
Commission noted that its "declaratory order was issued in a specific
factual context," and declined to comment on various hypothetical
situations presented by the petition.[fn7] Id., at 893. It
relied on its "long standing policy of refusing to issue interpretive
rulings or advisory opinions when the critical facts are not
explicitly stated or there is a possibility that subsequent events
will alter them." Ibid.

The United States Court of Appeals for the District of Columbia
Circuit reversed, with each of the three judges on the panel writing
separately. 181 U.S. App. D.C. 132, 556 F.2d 9. Judge Tamm concluded
that the order represented censorship and was expressly prohibited by
326 of the Communications Act.[fn8] Alternatively, Judge Tamm
read the Commission opinion as the functional equivalent of a rule
and concluded that it was "overbroad." 181 U.S. App. D.C., at 141,
556 F.2d, at 18. Chief Judge Bazelon's concurrence rested on the
Constitution. He was persuaded that 326's prohibition against
censorship is inapplicable to broadcasts forbidden by 1464. However,
he concluded that 1464 must be narrowly construed to cover only
language that is obscene or otherwise unprotected by the First
Amendment. 181 U.S. App. D.C., at 140-153, 556 F.2d, at 24-30. Judge
Leventhal, in dissent, stated that the only issue was whether the
Commission could regulate the language "as broadcast." Id., at 154,
556 F.2d, at 31. Emphasizing the interest in protecting children, not
only from exposure to indecent language, but also from exposure to
the idea that such language has official approval, id., at 160, and
n. 18, 556 F.2d, at 37, and n. 18, he concluded that the Commission
had correctly condemned the daytime broadcast as indecent.

Having granted the Commission's petition for certiorari, 434 U.S.
1008, we must decide: (1) whether the scope of judicial review
encompasses more than the Commission's determination that the
monologue was indecent "as broadcast"; (2) whether the Commission's
order was a form of censorship forbidden by 326; (3) whether the
broadcast was indecent within the meaning of 1464; and (4) whether
the order violates the First Amendment of the United States
Constitution.

I

The general statements in the Commission's memorandum opinion do
not change the character of its order. Its action was an adjudication
under 5 U.S.C. 554 (e) (1976 ed.); it did not purport to engage in
formal rulemaking or in the promulgation of any regulations. The
order "was issued in a specific factual context"; questions
concerning possible action in other contexts were expressly reserved
for the future. The specific holding was carefully confined to the
monologue "as broadcast."

"This Court . . . reviews judgments, not statements in opinions."
Black v. Cutter Laboratories, 351 U.S. 292, 297. That admonition has
special force when the statements raise constitutional questions, for
it is our settled practice to avoid the unnecessary decision of such
issues. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569.
However appropriate it may be for an administrative agency to write
broadly in an adjudicatory proceeding, federal courts have never been
empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U.S.
117, 126. Accordingly, the focus of our review must be on the
Commission's determination that the Carlin monologue was indecent as
broadcast.

II

The relevant statutory questions are whether the Commission's
action is forbidden "censorship" within the meaning of 47 U.S.C. 326
and whether speech that concededly is not obscene may be restricted
as "indecent" under the authority of 18 U.S.C. 1464 (1976 ed.). The
questions are not unrelated, for the two statutory provisions have a
common origin. Nevertheless, we analyze them separately.

Section 29 of the Radio Act of 1927 provided:

"Nothing in this Act shall be understood or construedto
give the licensing authority the power of censorshipover the radio
communications or signals transmitted byany radio station, and no
regulation or condition shall bepromulgated or fixed by the
licensing authority whichshall interfere with the right of free
speech by means ofradio communications. No person within the
jurisdictionof the United States shall utter any obscene,
indecent,or profane language by means of radio communication."44
Stat. 1172.

The prohibition against censorship unequivocally denies the
Commission any power to edit proposed broadcasts in advance and to
excise material considered inappropriate for the airwaves. The
prohibition, however, has never been construed to deny the Commission
the power to review the content of completed broadcasts in the
performance of its regulatory duties.[fn9]

During the period between the original enactment of the provision
in 1927 and its re-enactment in the Communications Act of 1934, the
courts and the Federal Radio Commission held that the section
deprived the Commission of the power to subject "broadcasting matter
to scrutiny prior to its release," but they concluded that the
Commission's "undoubted right" to take note of past program content
when considering a licensee's renewal application "is not
censorship."[fn10]

Not only did the Federal Radio Commission so construe the statute
prior to 1934; its successor, the Federal Communications Commission,
has consistently interpreted the provision in the same way ever
since. See Note, Regulation of Program Content by the FCC, 77 Harv.
L. Rev. 701 (1964). And, until this case, the Court of Appeals for
the District of Columbia Circuit has consistently agreed with this
construction.[fn11] Thus, for example, in his opinion in
Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App. D.C.
146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, Judge Wright
forcefully pointed out that the Commission is not prevented from
canceling the license of a broadcaster who persists in a course of
improper programming. He explained:

"This would not be prohibited `censorship,' . . . any more than
would the Commission's considering on a license renewal application
whether a broadcaster allowed `coarse, vulgar, suggestive,
double-meaning' programming; programs containing such material are
grounds for denial of a license renewal." 131 U.S. App. D.C., at
150-151, n. 3. 403 F.2d, at 173-174, n. 3.See also Office of
Communication of United Church of Christ v. FCC, 123 U.S. App. D.C.
328, 359 F.2d 994 (1966).

Entirely apart from the fact that the subsequent review of program
content is not the sort of censorship at which the statute was
directed, its history makes it perfectly clear that it was not
intended to limit the Commission's power to regulate the broadcast of
obscene, indecent, or profane language. A single section of the 1927
Act is the source of both the anticensorship provision and the
Commission's authority to impose sanctions for the broadcast of
indecent or obscene language. Quite plainly, Congress intended to
give meaning to both provisions. Respect for that intent requires
that the censorship language be read as inapplicable to the
prohibition on broadcasting obscene, indecent, or profane language.

There is nothing in the legislative history to contradict this
conclusion. The provision was discussed only in generalities when it
was first enacted.[fn12] In 1934, the anticensorship
provision and the prohibition against indecent broadcasts were
re-enacted in the same section, just as in the 1927 Act. In 1948,
when the Criminal Code was revised to include provisions that had
previously been located in other Titles of the United States Code,
the prohibition against obscene, indecent, and profane broadcasts was
removed from the Communications Act and re-enacted as 1464 of Title
18. 62 Stat. 769 and 866. That rearrangement of the Code cannot
reasonably be interpreted as having been intended to change the
meaning of the anticensorship provision. H. R. Rep. No. 304, 80th
Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United
States, 409 U.S. 151, 162.

We conclude, therefore, that 326 does not limit the Commission's
authority to impose sanctions on licensees who engage in obscene,
indecent, or profane broadcasting.

III

The only other statutory question presented by this case is
whether the afternoon broadcast of the "Filthy Words" monologue was
indecent within the meaning of 1464.[fn13] Even that question
is narrowly confined by the arguments of the parties.

The Commission identified several words that referred to excretory
or sexual activities or organs, stated that the repetitive,
deliberate use of those words in an afternoon broadcast when children
are in the audience was patently offensive, and held that the
broadcast was indecent. Pacifica takes issue with the Commission's
definition of indecency, but does not dispute the Commission's
preliminary determination that each of the components of its
definition was present. Specifically, Pacifica does not quarrel with
the conclusion that this afternoon broadcast was patently offensive.
Pacifica's claim that the broadcast was not indecent within the
meaning of the statute rests entirely on the absence of prurient
appeal.

The plain language of the statute does not support Pacifica's
argument. The words "obscene, indecent, or profane" are written in
the disjunctive, implying that each has a separate meaning. Prurient
appeal is an element of the obscene, but the normal definition of
"indecent" merely refers to nonconformance with accepted standards of
morality.[fn14]

Pacifica argues, however, that this Court has construed the term
"indecent" in related statutes to mean "obscene," as that term was
defined in Miller v. California, 413 U.S. 15. Pacifica relies most
heavily on the construction this Court gave to 18 U.S.C. 1461 in
Hamling v. United States, 418 U.S. 87. See also United States v. 12
200-ft. Reels of Film, 413 U.S. 123, 130 n. 7 (18 U.S.C. 1462)
(dicta). Hamling rejected a vagueness attack on 1461, which forbids
the mailing of "obscene, lewd, lascivious, indecent, filthy or vile"
material. In holding that the statute's coverage is limited to
obscenity, the Court followed the lead of Mr. Justice Harlan in
Manual Enterprises, Inc. v. Day, 370 U.S. 478. In that case, Mr.
Justice Harlan recognized that 1461 contained a variety of words with
many shades of meaning.[fn15] Nonetheless, he thought that
the phrase "obscene, lewd, lascivious, indecent, filthy or vile,"
taken as a whole, was clearly limited to the obscene, a reading well
grounded in prior judicial constructions: "[T]he statute
since its inception has always been taken as aimed at obnoxiously
debasing portrayals of sex." 370 U.S., at 483. In Hamling the Court
agreed with Mr. Justice Harlan that 1461 was meant only to regulate
obscenity in the mails; by reading into it the limits set by Miller
v. California, supra, the Court adopted a construction which assured
the statute's constitutionality.

The reasons supporting Hamling's construction of 1461 do not apply
to 1464. Although the history of the former revealed a primary
concern with the prurient, the Commission has long interpreted 1464
as encompassing more than the obscene.[fn16] The former
statute deals primarily with printed matter enclosed in sealed
envelopes mailed from one individual to another; the latter deals
with the content of public broadcasts. It is unrealistic to assume
that Congress intended to impose precisely the same limitations on
the dissemination of patently offensive matter by such different
means.[fn17]

Because neither our prior decisions nor the language or history of
1464 supports the conclusion that prurient appeal is an essential
component of indecent language, we reject Pacifica's construction of
the statute. When that construction is put to one side, there is no
basis for disagreeing with the Commission's conclusion that indecent
language was used in this broadcast.

IV

Pacifica makes two constitutional attacks on the Commission's
order. First, it argues that the Commission's construction of the
statutory language broadly encompasses so much constitutionally
protected speech that reversal is required even if Pacifica's
broadcast of the "Filthy Words" monologue is not itself protected by
the First Amendment. Second, Pacifica argues that inasmuch as the
recording is not obscene, the Constitution forbids any abridgment of
the right to broadcast it on the radio.

IV-A

The first argument fails because our review is limited to the
question whether the Commission has the authority to proscribe this
particular broadcast. As the Commission itself emphasized, its order
was "issued in a specific factual context." 59 F. C. C. 2d, at 893.
That approach is appropriate for courts as well as the Commission
when regulation of indecency is at stake, for indecency is largely a
function of context it cannot be adequately judged in the abstract.

The approach is also consistent with Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367. In that case the Court rejected an argument that
the Commission's regulations defining the fairness doctrine were so
vague that they would inevitably abridge the broadcasters' freedom of
speech. The Court of Appeals had invalidated the regulations because
their vagueness might lead to self-censorship of controversial
program content. Radio Television News Directors Assn. v. United
States, 400 F.2d 1002, 1016 (CA7 1968). This Court reversed. After
noting that the Commission had indicated, as it has in this case,
that it would not impose sanctions without warning in cases in which
the applicability of the law was unclear, the Court stated:

"We need not approve every aspect of the fairness doctrine to
decide these cases, and we will not now pass upon the
constitutionality of these regulations by envisioning the most
extreme applications conceivable, United States v. Sullivan, 332 U.S.
689, 694 (1948), but will deal with those problems if and when they
arise." 395 U.S., at 396.

It is true that the Commission's order may lead some broadcasters
to censor themselves. At most, however, the Commission's definition
of indecency will deter only the broadcasting of patently offensive
references to excretory and sexual organs and
activities.[fn18] While some of these references may be
protected, they surely lie at the periphery of First Amendment
concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381.
Young v. American Mini Theatres, Inc., 427 U.S. 50, 61. The danger
dismissed so summarily in Red Lion, in contrast, was that
broadcasters would respond to the vagueness of the regulations by
refusing to present programs dealing with important social and
political controversies. Invalidating any rule on the basis of its
hypothetical application to situations not before the Court is
"strong medicine" to be applied "sparingly and only as a last
resort." Broadrick v. Oklahoma, 413 U.S. 601, 613. We decline to
administer that medicine to preserve the vigor of patently offensive
sexual and excretory speech.

IV-B

When the issue is narrowed to the facts of this case, the question
is whether the First Amendment denies government any power to
restrict the public broadcast of indecent language in any
circumstances.[fn19] For if the government has any such
power, this was an appropriate occasion for its exercise.

The words of the Carlin monologue are unquestionably "speech"
within the meaning of the First Amendment. It is equally clear that
the Commission's objections to the broadcast were based in part on
its content. The order must therefore fall if, as Pacifica argues,
the First Amendment prohibits all governmental regulation that
depends on the content of speech. Our past cases demonstrate,
however, that no such absolute rule is mandated by the Constitution.

The classic exposition of the proposition that both the content
and the context of speech are critical elements of First Amendment
analysis is Mr. Justice Holmes' statement for the Court in Schenck v.
United States, 249 U.S. 47, 52:

"We admit that in many places and in ordinary times the defendants
in saying all that was said in the circular would have been within
their constitutional rights. But the character of every act depends
upon the circumstances in which it is done. . . . The most stringent
protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. It does not even protect a man
from an injunction against uttering words that may have all the
effect of force. . . . The question in every case is whether the
words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."

Other distinctions based on content have been approved in the
years since Schenck. The government may forbid speech calculated to
provoke a fight. See Chaplinsky v. New Hampshire, 315 U.S. 568. It
may pay heed to the "`commonsense differences' between commercial
speech and other varieties." Bates v. State Bar of Arizona, supra, at
381. It may treat libels against private citizens more severely than
libels against public officials. See Gertz v. Robert Welch, Inc., 418
U.S. 323. Obscenity may be wholly prohibited. Miller v. California,
413 U.S. 15. And only two Terms ago we refused to hold that a
"statutory classification is unconstitutional because it is based on
the content of communication protected by the First Amendment." Young
v. American Mini Theatres, Inc., supra, at 52.

The question in this case is whether a broadcast of patently
offensive words dealing with sex and excretion may be regulated
because of its content.[fn20] Obscene materials have been
denied the protection of the First Amendment because their content is
so offensive to contemporary moral standards. Roth v. United States,
354 U.S. 476. But the fact that society may find speech offensive is
not a sufficient reason for suppressing it. Indeed, if it is the
speaker's opinion that gives offense, that consequence is a reason
for according it constitutional protection. For it is a central tenet
of the First Amendment that the government must remain neutral in the
marketplace of ideas[fn21] If there were any reason to
believe that the Commission's characterization of the Carlin
monologue as offensive could be traced to its political content or
even to the fact that it satirized contemporary attitudes about
four-letter words[fn22] First Amendment protection might be
required. But that is simply not this case. These words offend for
the same reasons that obscenity offends.[fn23] Their place in
the hierarchy of First Amendment values was aptly sketched by Mr.
Justice Murphy when he said: "[S]uch utterances are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality." Chaplinsky v. New Hampshire, 315 U.S., at 572.

Although these words ordinarily lack literary, political, or
scientific value, they are not entirely outside the protection of the
First Amendment. Some uses of even the most offensive words are
unquestionably protected. See, e. g., Hess v. Indiana, 414 U.S. 105.
Indeed, we may assume, arguendo, that this monologue would be
protected in other contexts. Nonetheless, the constitutional
protection accorded to a communication containing such patently
offensive sexual and excretory language need not be the same in every
context.[fn24] It is a characteristic of speech such as this
that both its capacity to offend and its "social value," to use Mr.
Justice Murphy's term, vary with the circumstances. Words that are
commonplace in one setting are shocking in another. To paraphrase Mr.
Justice Harlan, one occasion's lyric is another's vulgarity. Cf.
Cohen v. California, 403 U.S. 15, 25.[fn25]

In this case it is undisputed that the content of Pacifica's
broadcast was "vulgar," "offensive," and "shocking." Because content
of that character is not entitled to absolute constitutional
protection under all circumstances, we must consider its context in
order to determine whether the Commission's action was
constitutionally permissible.

IV-C

We have long recognized that each medium of expression presents
special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495, 502-503. And of all forms of communication, it is
broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except
under laws that carefully define and narrow official discretion, a
broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public
interest, convenience, and necessity."[fn26] Similarly,
although the First Amendment protects newspaper publishers from being
required to print the replies of those whom they criticize, Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such
protection to broadcasters; on the contrary, they must give free time
to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,
395 U.S. 367.

The reasons for these distinctions are complex, but two have
relevance to the present case. First, the broadcast media have
established a uniquely pervasive presence in the lives of all
Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but also in the
privacy of the home, where the individual's right to be left alone
plainly outweighs the First Amendment rights of an intruder. Rowan v.
Post Office Dept., 397 U.S. 728. Because the broadcast audience is
constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content. To
say that one may avoid further offense by turning off the radio when
he hears indecent language is like saying that the remedy for an
assault is to run away after the first blow. One may hang up on an
indecent phone call, but that option does not give the caller a
constitutional immunity or avoid a harm that has already taken
place.[fn27]

Second, broadcasting is uniquely accessible to children, even
those too young to read. Although Cohen's written message might have
been incomprehensible to a first grader, Pacifica's broadcast could
have enlarged a child's vocabulary in an instant. Other forms of
offensive expression may be withheld from the young without
restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent
material available to children. We held in Ginsberg v. New York, 390
U.S. 629, that the government's interest in the "well-being of its
youth" and in supporting "parents' claim to authority in their own
household" justified the regulation of otherwise protected
expression. Id., at 640 and 639.[fn28] The case with which
children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.

It is appropriate, in conclusion, to emphasize the narrowness of
our holding. This case does not involve a two-way radio conversation
between a cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an occasional expletive
in either setting would justify any sanction or, indeed, that this
broadcast would justify a criminal prosecution. The Commission's
decision rested entirely on a nuisance rationale under which context
is all-important. The concept requires consideration of a host of
variables. The time of day was emphasized by the Commission. The
content of the program in which the language is used will also affect
the composition of the audience,[fn29] and differences
between radio, television, and perhaps closed-circuit transmissions,
may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance
may be merely a right thing in the wrong place, like a pig in the
parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272
U.S. 365, 388. We simply hold that when the Commission finds that a
pig has entered the parlor, the exercise of its regulatory power does
not depend on proof that the pig is obscene.

2. "Broadcasting requires special treatment because of four
important considerations: (1) children have access to radios and in
many cases are unsupervised by parents; (2) radio receivers are in
the home, a place where people's privacy interest is entitled to
extra deference, see Rowan v. Post Office Dept., 397 U.S. 728 (1970);
(3) unconsenting adults may tune in a station without any warning
that offensive language is being or will be broadcast; and (4) there
is a scarcity of spectrum space, the use of which the government must
therefore license in the public interest. Of special concern to the
Commission as well as parents is the first point regarding the use of
radio by children." Id., at 97.

3. Title 18 U.S.C. 1464 (1976 ed.) provides:

"Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be fined not more
than $10,000 or imprisoned not more than two years, or both."

"Except as otherwise provided in this chapter, the
Commission from time to time, as public convenience, interest, or
necessity requires, shall

.. . . .

"(g) . . . generally encourage the larger and more effective
use of radio in the public interest."

5. Thus, the Commission suggested, if an offensive broadcast had
literary, artistic, political, or scientific value, and were preceded
by warnings, it might not be indecent in the late evening, but would
be so during the day, when children are in the audience. 56 F. C. C.
2d, at 98.

6. Chairman Wiley concurred in the result without joining the
opinion. Commissioners Reid and Quello filed separate statements
expressing the opinion that the language was inappropriate for
broadcast at any time. Id., at 102-103. Commissioner Robinson, joined
by Commissioner Hooks, filed a concurring statement expressing the
opinion: "[W]e can regulate offensive speech to the extent it
constitutes a public nuisance. . . . The governing idea is that
`indecency' is not an inherent attribute of words themselves; it is
rather a matter of context and conduct. . . . If I were called on to
do so, I would find that Carlin's monologue, if it were broadcast at
an appropriate hour and accompanied by suitable warning, was
distinguished by sufficient literary value to avoid being `indecent'
within the meaning of the statute." Id., at 107-108, and n. 9.

7. The Commission did, however, comment:

"`[I]n some cases, public events likely to produce
offensive speech are covered live, and there is no opportunity for
journalistic editing.' Under these circumstances we believe that it
would be inequitable for us to hold a licensee responsible for
indecent language. . . . We trust that under such circumstances a
licensee will exercise judgment, responsibility, and sensitivity to
the community's needs, interests and tastes." 59 F. C. C. 2d, at 893
n. 1.

8. "Nothing in this Act shall be understood or construed to give
the Commission the power of censorship over the radio communications
or signals transmitted by any radio station, and no regulation or
condition shall be promulgated or fixed by the Commission which shall
interfere with the right of free speech by means of radio
communication." 48 Stat. 1091, 47 U.S.C. 326.

9. Zechariah Chafee, defending the Commission's authority to take
into account program service in granting licenses, interpreted the
restriction on "censorship" narrowly: "This means, I feel sure, the
sort of censorship which went on in the seventeenth century in
England the deletion of specific items and dictation as to what
should go into particular programs." 2 Z. Chafee, Government and Mass
Communications 641 (1947).

10. In KFKB Broadcasting Assn. v. Federal Radio Comm'n, 60 App.
D.C. 79, 47 F.2d 670 (1931), a doctor who controlled a radio station
as well as a pharmaceutical association made frequent broadcasts in
which he answered the medical questions of listeners. He often
prescribed mixtures prepared by his pharmaceutical association. The
Commission determined that renewal of the station's license would not
be in the public interest, convenience, or necessity because many of
the broadcasts served the doctor's private interests. In response to
the claim that this was censorship in violation of 29 of the 1927
Act, the Court held:

"This contention is without merit. There has been no
attempt on the part of the commission to subject any part of
appellant's broadcasting matter to scrutiny prior to its release.
In considering the question whether the public interest,
convenience, or necessity will be served by a renewal of
appellant's license, the commission has merely exercised its
undoubted right to take note of appellant's past conduct, which is
not censorship." 60 App. D.C., at 81, 47 F.2d, at 672.

In Trinity Methodist Church, South v. Federal Radio Comm'n, 61
App. D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, the
station was controlled by a minister whose broadcasts contained
frequent references to "pimps" and "prostitutes" as well as bitter
attacks on the Roman Catholic Church. The Commission refused to renew
the license, citing the nature of the broadcasts. The Court of
Appeals affirmed, concluding the First Amendment concerns did not
prevent the Commission from regulating broadcasts that "offend the
religious susceptibilities of thousands . . . or offend youth and
innocence by the free use of words suggestive of sexual immorality."
61 App. D.C., at 314, 62 F.2d, at 853. The court recognized that the
licensee had a right to broadcast this material free of prior
restraint, but "this does not mean that the government, through
agencies established by Congress, may not refuse a renewal of license
to one who has abused it." Id., at 312, 62 F.2d, at 851.

13. In addition to 1464, the Commission also relied on its power
to regulate in the public interest under 47 U.S.C. 303 (g). We do not
need to consider whether 303 may have independent significance in a
case such as this. The statutes authorizing civil penalties
incorporate 1464, a criminal statute. See 47 U.S.C. 312 (a) (6), 312
(b) (2), and 503 (b) (1) (E) (1970 ed. and Supp. V). But the validity
of the civil sanctions is not linked to the validity of the criminal
penalty. The legislative history of the provisions establishes their
independence. As enacted in 1927 and 1934, the prohibition on
indecent speech was separate from the provisions imposing civil and
criminal penalties for violating the prohibition. Radio Act of 1927,
14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934,
312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. 312, 326,
and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in
the strongest possible language that any invalid provision was
separable from the rest of the Act. Radio Act of 1927, 38, 44 Stat.
1174; Communications Act of 1934, 608, 48 Stat. 1105, 47 U.S.C. 608.
Although the 1948 codification of the criminal laws and the addition
of new civil penalties changes the statutory structure, no
substantive change was apparently intended. Cf. Tidewater Oil Co. v.
United States, 409 U.S. 151, 162. Accordingly, we need not consider
any question relating to the possible application of 1464 as a
criminal statute.

14. Webster defines the term as "a: altogether unbecoming:
contrary to what the nature of things or what circumstances would
dictate as right or expected or appropriate: hardly suitable:
UNSEEMLY . . . b: not conforming to generally accepted standards of
morality: . . . ." Webster's Third New International Dictionary
(1966).

15. Indeed, at one point, he used "indecency" as a shorthand term
for "patent offensiveness," 370 U.S., at 482, a usage strikingly
similar to the Commission's definition in this case. 56 F. C. C. 2d,
at 98.

17. This conclusion is reinforced by noting the different
constitutional limits on Congress' power to regulate the two
different subjects. Use of the postal power to regulate material that
is not fraudulent or obscene raises "grave constitutional questions."
Hannegan v. Esquire, Inc., 327 U.S. 146, 156. But it is well settled
that the First Amendment has a special meaning in the broadcasting
context. See, e. g., FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775; Red Lion Broadcasting Co. v. FCC, 395
U.S. 367; Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94. For this reason, the presumption that
Congress never intends to exceed constitutional limits, which
supported Hamling's narrow reading of 1461, does not support a
comparable reading of 1464.

18. A requirement that indecent language be avoided will have its
primary effect on the form, rather than the content, of serious
communication. There are few, if any, thoughts that cannot be
expressed by the use of less offensive language.

19. Pacifica's position would, of course, deprive the Commission
of any power to regulate erotic telecasts unless they were obscene
under Miller v. California, 413 U.S. 15. Anything that could be sold
at a newsstand for private examination could be publicly displayed on
television.

We are assured by Pacifica that the free play of market forces
will discourage indecent programming. "Smut may," as Judge Leventhal
put it, "drive itself from the market and confound Gresham," 181 U.S.
App. D.C., at 158, 556 F.2d, at 35; the prosperity of those who
traffic in pornographic literature and films would appear to justify
skepticism.

20. Although neither MR. JUSTICE POWELL nor MR. JUSTICE BRENNAN
directly confronts this question, both have answered it
affirmatively, the latter explicitly, post, at 768 n. 3, and the
former implicitly by concurring in a judgment that could not
otherwise stand.

22. The monologue does present a point of view; it attempts to
show that the words it uses are "harmless" and that our attitudes
toward them are "essentially silly." See supra, at 730. The
Commission objects, not to this point of view, but to the way in
which it is expressed. The belief that these words are harmless does
not necessarily confer a First Amendment privilege to use them while
proselytizing, just as the conviction that obscenity is harmless does
not license one to communicate that conviction by the indiscriminate
distribution of an obscene leaflet.

23. The Commission stated: "Obnoxious, gutter language describing
these matters has the effect of debasing and brutalizing human beings
by reducing them to their mere bodily functions . . . ." 56 F. C. C.
2d, at 98. Our society has a tradition of performing certain bodily
functions in private, and of severely limiting the public exposure or
discussion of such matters. Verbal or physical acts exposing those
intimacies are offensive irrespective of any message that may
accompany the exposure.

24. With respect to other types of speech, the Court has tailored
its protection to both the abuses and the uses to which it might be
put. See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254
(special scienter rules in libel suits brought by public officials);
Bates v. State Bar of Arizona, 433 U.S. 350 (government may strictly
regulate truthfulness in commercial speech). See also Young v.
American Mini Theatres, Inc., 427 U.S. 50, 82 n. 6 (POWELL, J.,
concurring).

25. The importance of context is illustrated by the Cohen case.
That case arose when Paul Cohen entered a Los Angeles courthouse
wearing a jacket emblazoned with the words "Fuck the Draft." After
entering the courtroom, he took the jacket off and folded it. 403
U.S., at 19 n. 3. So far as the evidence showed, no one in the
courthouse was offended by his jacket. Nonetheless, when he left the
courtroom, Cohen was arrested, convicted of disturbing the peace, and
sentenced to 30 days in prison.

In holding that criminal sanctions could not be imposed on Cohen
for his political statement in a public place, the Court rejected the
argument that his speech would offend unwilling viewers; it noted
that "there was no evidence that persons powerless to avoid
[his] conduct did in fact object to it." Id., at 22. In
contrast, in this case the Commission was responding to a listener's
strenuous complaint, and Pacifica does not question its determination
that this afternoon broadcast was likely to offend listeners. It
should be noted that the Commission imposed a far more moderate
penalty on Pacifica than the state court imposed on Cohen. Even the
strongest civil penalty at the Commission's command does not include
criminal prosecution. See n. 1, supra. [Back]

27. Outside the home, the balance between the offensive speaker
and the unwilling audience may sometimes tip in favor of the speaker,
requiring the offended listener to turn away. See Erznoznik v.
Jacksonville, 422 U.S. 205. As we noted in Cohen v. California:

"While this Court has recognized that government may
properly act in many situations to prohibit intrusion into the
privacy of the home of unwelcome views and ideas which cannot be
totally banned from the public dialogue . . ., we have at the same
time consistently stressed that `we are often "captives" outside
the sanctuary of the home and subject to objectionable speech.'"
403 U.S., at 21.

The problem of harassing phone calls is hardly hypothetical.
Congress has recently found it necessary to prohibit debt collectors
from "plac[ing] telephone calls without meaningful disclosure
of the caller's identity"; from "engaging any person in telephone
conversation repeatedly or continuously with intent to annoy, abuse,
or harass any person at the called number"; and from "us[ing]
obscene or profane language or language the natural consequence of
which is to abuse the hearer or reader." Consumer Credit Protection
Act Amendments, 91 Stat. 877, 15 U.S.C. 1692d (1976 ed., Supp.
II).

28. The Commission's action does not by any means reduce adults to
hearing only what is fit for children. Cf. Butler v. Michigan, 352
U.S. 380, 383. Adults who feel the need may purchase tapes and
records or go to theaters and nightclubs to hear these words. In
fact, the Commission has not unequivocally closed even broadcasting
to speech of this sort; whether broadcast audiences in the late
evening contain so few children that playing this monologue would be
permissible is an issue neither the Commission nor this Court has
decided.

29. Even a prime-time recitation of Geoffrey Chaucer's Miller's
Tale would not be likely to command the attention of many children
who are both old enough to understand and young enough to be
adversely affected by passages such as: "And prively he caughte hire
by the queynte." The Canterbury Tales, Chaucer's Complete Works
(Cambridge ed. 1933), p. 58, l. 3276.

MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins,
concurring in part and concurring in the judgment.

I join Parts I, II, III, and IV-C of MR. JUSTICE STEVENS' opinion.
The Court today reviews only the Commission's holding that Carlin's
monologue was indecent "as broadcast" at two o'clock in the
afternoon, and not the broad sweep of the Commission's opinion. Ante,
at 734-735. In addition to being consistent with our settled practice
of not deciding constitutional issues unnecessarily, see ante, at
734; Ashwander v. TVA, 297 U.S. 288, 345-348 (1936) (Brandeis, J.,
concurring), this narrow focus also is conducive to the orderly
development of this relatively new and difficult area of law, in the
first instance by the Commission, and then by the reviewing courts.
See 181 U.S. App. D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977)
(Leventhal, J., dissenting).

I also agree with much that is said in Part IV of MR. JUSTICE
STEVENS' opinion, and with its conclusion that the Commission's
holding in this case does not violate the First Amendment. Because I
do not subscribe to all that is said in Part IV, however, I state my
views separately.

I

It is conceded that the monologue at issue here is not obscene in
the constitutional sense. See 56 F. C. C. 2d 94, 98 (1975); Brief for
Petitioner 18. Nor, in this context, does its language constitute
"fighting words" within the meaning of Chaplinsky v. New Hampshire,
315 U.S. 568 (1942). Some of the words used have been held protected
by the First Amendment in other cases and contexts. E. g., Lewis v.
New Orleans, 415 U.S. 130 (1974); Hess v. Indiana, 414 U.S. 105
(1973); Papish v. University of Missouri Curators, 410 U.S. 667
(1973); Cohen v. California, 403 U.S. 15 (1971); see also Eaton v.
Tulsa, 415 U.S. 697 (1974). I do not think Carlin, consistently with
the First Amendment, could be punished for delivering the same
monologue to a live audience composed of adults who, knowing what to
expect, chose to attend his performance. See Brown v. Oklahoma, 408
U.S. 914 (1972) (POWELL, J., concurring in result). And I would
assume that an adult could not constitutionally be prohibited from
purchasing a recording or transcript of the monologue and playing or
reading it in the privacy of his own home. Cf. Stanley v. Georgia,
394 U.S. 557 (1969).

But it also is true that the language employed is, to most people,
vulgar and offensive. It was chosen specifically for this quality,
and it was repeated over and over as a sort of verbal shock
treatment. The Commission did not err in characterizing the narrow
category of language used here as "patently offensive" to most people
regardless of age.

The issue, however, is whether the Commission may impose civil
sanctions on a licensee radio station for broadcasting the monologue
at two o'clock in the afternoon. The Commission's primary concern was
to prevent the broadcast from reaching the ears of unsupervised
children who were likely to be in the audience at that hour. In
essence, the Commission sought to "channel" the monologue to hours
when the fewest unsupervised children would be exposed to it. See 56
F. C. C. 2d, at 98. In my view, this consideration provides strong
support for the Commission's holding.[fn1]

The Court has recognized society's right to "adopt more stringent
controls on communicative materials available to youths than on those
available to adults." Erznoznik v. Jacksonville, 422 U.S. 205, 212
(1975); see also, e. g., Miller v. California, 413 U.S. 15, 36 n. 17
(1973); Ginsberg v. New York, 390 U.S. 629, 636-641 (1968);
Jacobellis v. Ohio, 378 U.S. 184, 195 (1964) (opinion of BRENNAN,
J.). This recognition stems in large part from the fact that "a child
. . . is not possessed of that full capacity for individual choice
which is the presupposition of First Amendment guarantees." Ginsberg
v. New York, supra, at 649-650 (STEWART, J., concurring in result).
Thus, children may not be able to protect themselves from speech
which, although shocking to most adults, generally may be avoided by
the unwilling through the exercise of choice. At the same time, such
speech may have a deeper and more lasting negative effect on a child
than on an adult. For these reasons, society may prevent the general
dissemination of such speech to children, leaving to parents the
decision as to what speech of this kind their children shall hear and
repeat:

"[C]onstitutional interpretation has consistently
recognizedthat the parents' claim to authority in their own household
to direct the rearing of their children is basicin the structure of
our society. `It is cardinal with usthat the custody, care and
nurture of the child residefirst in the parents, whose primary
function and freedominclude preparation for obligations the state can
neithersupply nor hinder.' Prince v. Massachusetts, [321 U.S.
158,166 (1944)]. The legislature could properly conclude that
parents and others, teachers for example, who have this primary
responsibility for children's well-beingare entitled to the support
of laws designed to aid dischargeof that responsibility." Id., at
639.

The Commission properly held that the speech from which society
may attempt to shield its children is not limited to that which
appeals to the youthful prurient interest. The language involved in
this case is as potentially degrading and harmful to children as
representations of many erotic acts.

In most instances, the dissemination of this kind of speech to
children may be limited without also limiting willing adults' access
to it. Sellers of printed and recorded matter and exhibitors of
motion pictures and live performances may be required to shut their
doors to children, but such a requirement has no effect on adults'
access. See id., at 634-635. The difficulty is that such a physical
separation of the audience cannot be accomplished in the broadcast
media. During most of the broadcast hours, both adults and
unsupervised children are likely to be in the broadcast audience, and
the broadcaster cannot reach willing adults without also reaching
children. This, as the Court emphasizes, is one of the distinctions
between the broadcast and other media to which we often have adverted
as justifying a different treatment of the broadcast media for First
Amendment purposes. See Bates v. State Bar of Arizona, 433 U.S. 350,
384 (1977); Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94, 101 (1973); Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 386-387 (1969); Capital Broadcasting Co. v. Mitchell,
333 F. Supp. 582 (DC 1971), aff'd sub nom. Capital Broadcasting Co.
v. Acting Attorney General, 405 U.S. 1000 (1972); see generally
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503 (1952). In my
view, the Commission was entitled to give substantial weight to this
difference in reaching its decision in this case.

A second difference, not without relevance, is that broadcasting
unlike most other forms of communication comes directly into the
home, the one place where people ordinarily have the right not to be
assaulted by uninvited and offensive sights and sounds. Erznoznik v.
Jacksonville, supra, at 209; Cohen v. California, 403 U.S., at 21;
Rowan v. Post Office Dept., 397 U.S. 728 (1970). Although the First
Amendment may require unwilling adults to absorb the first blow of
offensive but protected speech when they are in public before they
turn away, see, e. g., Erznoznik, supra, at 210-211, but cf.
Rosenfeld v. New Jersey, 408 U.S. 901, 903-909 (1972) (POWELL, J.,
dissenting), a different order of values obtains in the home. "That
we are often `captives' outside the sanctuary of the home and subject
to objectionable speech and other sound does not mean we must be
captives everywhere." Rowan v. Post Office Dept., supra, at 738. The
Commission also was entitled to give this factor appropriate weight
in the circumstances of the instant case. This is not to say,
however, that the Commission has an unrestricted license to decide
what speech, protected in other media, may be banned from the
airwaves in order to protect unwilling adults from momentary exposure
to it in their homes.[fn2] Making the sensitive judgments
required in these cases is not easy. But this responsibility has been
reposed initially in the Commission, and its judgment is entitled to
respect.

It is argued that despite society's right to protect its children
from this kind of speech, and despite everyone's interest in not
being assaulted by offensive speech in the home, the Commission's
holding in this case is impermissible because it prevents willing
adults from listening to Carlin's monologue over the radio in the
early afternoon hours. It is said that this ruling will have the
effect of "reduc[ing] the adult population . . . to
[hearing] only what is fit for children." Butler v. Michigan,
352 U.S. 380,383 (1957). This argument is not without force. The
Commission certainly should consider it as it develops standards in
this area. But it is not sufficiently strong to leave the Commission
powerless to act in circumstances such as those in this case.

The Commission's holding does not prevent willing adults from
purchasing Carlin's record, from attending his performances,
or,indeed, from reading the transcript reprinted as an appendix to
the Court's opinion. On its face, it does not prevent respondent
Pacifica Foundation from broadcasting the monologue during late
evening hours when fewer children are likely to be in the audience,
nor from broadcasting discussions of the contemporary use of language
at any time during the day. The Commission's holding, and certainly
the Court's holding today, does not speak to cases involving the
isolated use of a potentially offensive word in the course of a radio
broadcast, as distinguished from the verbal shock treatment
administered by respondent here. In short, I agree that on the facts
of this case, the Commission's order did not violate respondent's
First Amendment rights.

II

As the foregoing demonstrates, my views are generally in accord
with what is said in Part IV-C of MR. JUSTICE STEVENS' opinion. See
ante, at 748-750. I therefore join that portion of his opinion. I do
not join Part IV-B, however, because I do not subscribe to the theory
that the Justices of this Court are free generally to decide on the
basis of its content which speech protected by the First Amendment is
most "valuable" and hence deserving of the most protection, and which
is less "valuable" and hence deserving of less protection. Compare
ante, at 744-748; Young v. American Mini Theatres, Inc., 427 U.S. 50,
63-73 (1976) (opinion of STEVENS, J.), with id., at 73 n. 1 (POWELL,
J., concurring).[fn3] In my view, the result in this case
does not turn on whether Carlin's monologue, viewed as a whole, or
the words that constitute it, have more or less "value" than a
candidate's campaign speech. This is a judgment for each person to
make, not one for the judges to impose upon him.[fn4] The
result turns instead on the unique characteristics of the broadcast
media, combined with society's right to protect its children from
speech generally agreed to be inappropriate for their years, and with
the interest of unwilling adults in not being assaulted by such
offensive speech in their homes. Moreover, I doubt whether today's
decision will prevent any adult who wishes to receive Carlin's
message in Carlin's own words from doing so, and from making for
himself a value judgment as to the merit of the message and words.
Cf. id., at 77-79 (POWELL, J., concurring). These are the grounds
upon which I join the judgment of the Court as to Part IV.

2. It is true that the radio listener quickly may tune out speech
that is offensive to him. In addition, broadcasters may preface
potentially offensive programs with warnings. But such warnings do
not help the unsuspecting listener who tunes in at the middle of a
program. In this respect, too, broadcasting appears to differ from
books and records, which may carry warnings on their face, and from
motion pictures and live performances, which may carry warnings on
their marquees.

3. The Court has, however, created a limited exception to this
rule in order to bring commercial speech within the protection of the
First Amendment. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447,
455-456 (1978).

4. For much the same reason, I also do not join Part IV-A. I had
not thought that the application vel non of overbreadth analysis
should depend on the Court's judgment as to the value of the
protected speech that might be deterred. Cf. ante, at 743. Except in
the context of commercial speech, see Bates v. State Bar of Arizona,
433 U.S. 350, 380-381 (1977), it has not in the past. See, e. g.,
Lewis v. New Orleans, 415 U.S. 130 (1974); Gooding v. Wilson, 405
U.S. 518 (1972).

As MR. JUSTICE STEVENS points out, however, ante, at 734, the
Commission's order was limited to the facts of this case; "it did not
purport to engage in formal rulemaking or in the promulgation of any
regulations." In addition, since the Commission may be expected to
proceed cautiously, as it has in the past, cf. Brief for Petitioner
42-43, and n. 31, I do not foresee an undue "chilling" effect on
broadcasters' exercise of their rights. I agree, therefore, that
respondent's overbreadth challenge is meritless.

I agree with MR. JUSTICE STEWART that, under Hamling v. United
States, 418 U.S. 87 (1974), and United States v. 12 200-ft. Reels of
Film, 413 U.S. 123 (1973), the word "indecent" in 18 U.S.C. 1464
(1976 ed.) must be construed to prohibit only obscene speech. I
would, therefore, normally refrain from expressing my views on any
constitutional issues implicated in this case. However, I find the
Court's misapplication of fundamental First Amendment principles so
patent, and its attempt to impose its notions of propriety on the
whole of the American people so misguided, that I am unable to remain
silent.

I

For the second time in two years, see Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976), the Court refuses to embrace the
notion, completely antithetical to basic First Amendment values, that
the degree of protection the First Amendment affords protected speech
varies with the social value ascribed to that speech by five Members
of this Court. See opinion of MR. JUSTICE POWELL, ante, at 761-762.
Moreover, as do all parties, all Members of the Court agree that the
Carlin monologue aired by Station WBAI does not fall within one of
the categories of speech, such as "fighting words," Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942), or obscenity, Roth v. United States,
354 U.S. 476 (1957), that is totally without First Amendment
protection. This conclusion, of course, is compelled by our cases
expressly holding that communications containing some of the words
found condemnable here are fully protected by the First Amendment in
other contexts. See Eaton v. Tulsa, 415 U.S. 697 (1974); Papish v.
University of Missouri Curators, 410 U.S. 667 (1973); Brown v.
Oklahoma, 408 U.S. 914 (1972); Lewis v. New Orleans, 408 U.S. 913
(1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972); Cohen v.
California, 403 U.S. 15 (1971). Yet despite the Court's refusal to
create a sliding scale of First Amendment protection calibrated to
this Court's perception of the worth of a communication's content,
and despite our unanimous agreement that the Carlin monologue is
protected speech, a majority of the Court[fn1] nevertheless
finds that, on the facts of this case, the FCC is not
constitutionally barred from imposing sanctions on Pacifica for its
airing of the Carlin monologue. This majority apparently believes
that the FCC's disapproval of Pacifica's afternoon broadcast of
Carlin's "Dirty Words" recording is a permissible time, place, and
manner regulation. Kovacs v. Cooper, 336 U.S. 77 (1949). Both the
opinion of my Brother STEVENS and the opinion of my Brother POWELL
rely principally on two factors in reaching this conclusion: (1) the
capacity of a radio broadcast to intrude into the unwilling
listener's home, and (2) the presence of children in the listening
audience. Dispassionate analysis, removed from individual notions as
to what is proper and what is not, starkly reveals that these
justifications, whether individually or together, simply do not
support even the professedly moderate degree of governmental
homogenization of radio communications if, indeed, such
homogenization can ever be moderate given the pre-eminent status of
the right of free speech in our constitutional scheme that the Court
today permits.

I-A

Without question, the privacy interests of an individual in his
home are substantial and deserving of significant protection. In
finding these interests sufficient to justify the content regulation
of protected speech, however, the Court commits two errors. First, it
misconceives the nature of the privacy interests involved where an
individual voluntarily chooses to admit radio communications into his
home. Second, it ignores the constitutionally protected interests of
both those who wish to transmit and those who desire to receive
broadcasts that many including the FCC and this Court might find
offensive.

"The ability of government, consonant with the Constitution, to
shut off discourse solely to protect others from hearing it is . . .
dependent upon a showing that substantial privacy interests are being
invaded in an essentially intolerable manner. Any broader view of
this authority would effectively empower a majority to silence
dissidents simply as a matter of personal predilections." Cohen v.
California, supra, at 21 I am in wholehearted agreement with my
Brethren that an individual's right "to be let alone" when engaged in
private activity within the confines of his own home is encompassed
within the "substantial privacy interests" to which Mr. Justice
Harlan referred in Cohen, and is entitled to the greatest solicitude.
Stanley v. Georgia, 394 U.S. 557 (1969). However, I believe that an
individual's actions in switching on and listening to communications
transmitted over the public airways and directed to the public at
large do not implicate fundamental privacy interests, even when
engaged in within the home. Instead, because the radio is undeniably
a public medium, these actions are more properly viewed as a decision
to take part, if only as a listener, in an ongoing public discourse.
See Note, Filthy Words, the FCC, and the First Amendment: Regulating
Broadcast Obscenity, 61 Va. L. Rev. 579, 618 (1975). Although an
individual's decision to allow public radio communications into his
home undoubtedly does not abrogate all of his privacy interests, the
residual privacy interests he retains vis-a-vis the communication he
voluntarily admits into his home are surely no greater than those of
the people present in the corridor of the Los Angeles courthouse in
Cohen who bore witness to the words "Fuck the Draft" emblazoned
across Cohen's jacket. Their privacy interests were held insufficient
to justify punishing Cohen for his offensive communication.

Even if an individual who voluntarily opens his home to radio
communications retains privacy interests of sufficient moment to
justify a ban on protected speech if those interests are "invaded in
an essentially intolerable manner," Cohen v. California, supra, at
21, the very fact that those interests are threatened only by a radio
broadcast precludes any intolerable invasion of privacy; for unlike
other intrusive modes of communication, such as sound trucks,
"[t]he radio can be turned off," Lehman v. Shaker Heights,
418 U.S. 298,302 (1974) and with a minimum of effort. As Chief Judge
Bazelon aptly observed below, "having elected to receive public air
waves, the scanner who stumbles onto an offensive program is in the
same position as the unsuspecting passers-by in Cohen and Erznoznik
[v. Jacksonville, 422 U.S. 205 (1975)]; he can avert his
attention by changing channels or turning off the set." 181 U.S. App.
D.C. 132, 149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort
suffered by a listener who inadvertently tunes into a program he
finds offensive during the brief interval before he can simply extend
his arm and switch stations or flick the "off" button, it is surely
worth the candle to preserve the broadcaster's right to send, and the
right of those interested to receive, a message entitled to full
First Amendment protection. To reach a contrary balance, as does the
Court, is clearly to follow MR. JUSTICE STEVENS' reliance on animal
metaphors, ante, at 750-751, "to burn the house to roast the pig."
Butler v. Michigan, 352 U.S. 380, 383 (1957).

The Court's balance, of necessity, fails to accord proper weight
to the interests of listeners who wish to hear broadcasts the FCC
deems offensive. It permits majoritarian tastes completely to
preclude a protected message from entering the homes of a receptive,
unoffended minority. No decision of this Court supports such a
result. Where the individuals constituting the offended majority may
freely choose to reject the material being offered, we have never
found their privacy interests of such moment to warrant the
suppression of speech on privacy grounds. Cf. Lehman v. Shaker
Heights, supra. Rowan v. Post Office Dept., 397 U.S. 728 (1970),
relied on by the FCC and by the opinions of my Brothers POWELL and
STEVENS, confirms rather than belies this conclusion. In Rowan, the
Court upheld a statute, 39 U.S.C. 4009 (1964 ed., Supp. IV),
permitting householders to require that mail advertisers stop sending
them lewd or offensive materials and remove their names from mailing
lists. Unlike the situation here, householders who wished to receive
the sender's communications were not prevented from doing so. Equally
important, the determination of offensiveness vel non under the
statute involved in Rowan was completely within the hands of the
individual householder; no governmental evaluation of the worth of
the mail's content stood between the mailer and the householder. In
contrast, the visage of the censor is all too discernible here.

I-B

Most parents will undoubtedly find understandable as well as
commendable the Court's sympathy with the FCC's desire to prevent
offensive broadcasts from reaching the ears of unsupervised children.
Unfortunately, the facial appeal of this justification for radio
censorship masks its constitutional insufficiency. Although the
government unquestionably has a special interest in the well-being of
children and consequently "can adopt more stringent controls on
communicative materials available to youths than on those available
to adults," Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975); see
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107 (1973)
(BRENNAN, J., dissenting), the Court has accounted for this societal
interest by adopting a "variable obscenity" standard that permits the
prurient appeal of material available to children to be assessed in
terms of the sexual interests of minors. Ginsberg v. New York, 390
U.S. 629 (1968). It is true that the obscenity standard the Ginsberg
Court adopted for such materials was based on the then-applicable
obscenity standard of Roth v. United States, 354 U.S. 476 (1957), and
Memoirs v. Massachusetts, 383 U.S. 413 (1966), and that "[w]e
have not had occasion to decide what effect Miller [v.
California, 413 U.S. 15 (1973)] will have on the Ginsberg
formulation." Erznoznik v. Jacksonville, supra, at 213 n. 10.
Nevertheless, we have made it abundantly clear that "under any test
of obscenity as to minors . . . to be obscene `such expression must
be, in some significant way, erotic.'" 422 U.S., at 213 n. 10,
quoting Cohen v. California, 403 U.S., at 20.

Because the Carlin monologue is obviously not an erotic appeal to
the prurient interests of children, the Court, for the first time,
allows the government to prevent minors from gaining access to
materials that are not obscene, and are therefore protected, as to
them.[fn2] It thus ignores our recent admonition that
"[s]peech that is neither obscene as to youths nor subject to
some other legitimate proscription cannot be suppressed solely to
protect the young from ideas or images that a legislative body thinks
unsuitable for them." 422 U.S., at 213-214.[fn3] The Court's
refusal to follow its own pronouncements is especially lamentable
since it has the anomalous subsidiary effect, at least in the radio
context at issue here, of making completely unavailable to adults
material which may not constitutionally be kept even from children.
This result violates in spades the principle of Butler v. Michigan,
supra. Butler involved a challenge to a Michigan statute that forbade
the publication, sale, or distribution of printed material "tending
to incite minors to violent or depraved or immoral acts, manifestly
tending to the corruption of the morals of youth." 352 U.S., at 381.
Although Roth v. United States, supra, had not yet been decided, it
is at least arguable that the material the statute in Butler was
designed to suppress could have been co0nstitutionally denied to
children. Nevertheless, this Court found the statute
unconstitutional. Speaking for the Court, Mr. Justice Frankfurter
reasoned:

"The incidence of this enactment is to reduce the adult
population of Michigan to reading only what is fit for children.
It thereby arbitrarily curtails one of those liberties of the
individual, now enshrined in the Due Process Clause of the
Fourteenth Amendment, that history has attested as the
indispensable conditions for the maintenance and progress of a
free society." 352 U.S., at 383-384.

Where, as here, the government may not prevent the exposure of
minors to the suppressed material, the principle of Butler applies a
fortiori. The opinion of my Brother POWELL acknowledges that there
lurks in today's decision a potential for "`reduc[ing] the
adult population . . . to [hearing] only what is fit for
children,'" ante, at 760, but expresses faith that the FCC will
vigilantly prevent this potential from ever becoming a reality. I am
far less certain than my Brother POWELL that such faith in the
Commission is warranted, see Illinois Citizens Committee for
Broadcasting v. FCC, 169 U.S. App. D.C. 166, 187-190, 515 F.2d 397,
418-421 (1975) (statement of Bazelon, C. J., as to why he voted to
grant rehearing en banc); and even if I shared it, I could not so
easily shirk the responsibility assumed by each Member of this Court
jealously to guard against encroachments on First Amendment
freedoms.

In concluding that the presence of children in the listening
audience provides an adequate basis for the FCC to impose sanctions
for Pacifica's broadcast of the Carlin monologue, the opinions of my
Brother POWELL, ante, at 757-758, and my Brother STEVENS, ante, at
749-750, both stress the time-honored right of a parent to raise his
child as he sees fit a right this Court has consistently been
vigilant to protect. See Wisconsin v. Yoder, 406 U.S. 205 (1972);
Pierce v. Society of Sisters, 268 U.S. 510 (1925). Yet this principle
supports a result directly contrary to that reached by the Court.
Yoder and Pierce hold that parents, not the government, have the
right to make certain decisions regarding the upbringing of their
children. As surprising as it may be to individual Members of this
Court, some parents may actually find Mr. Carlin's unabashed attitude
towards the seven "dirty words" healthy, and deem it desirable to
expose their children to the manner in which Mr. Carlin defuses the
taboo surrounding the words. Such parents may constitute a minority
of the American public, but the absence of great numbers willing to
exercise the right to raise their children in this fashion does not
alter the right's nature or its existence. Only the Court's
regrettable decision does that.[fn4]

I-C

As demonstrated above, neither of the factors relied on by both
the opinion of my Brother POWELL and the opinion of my Brother
STEVENS the intrusive nature of radio and the presence of children in
the listening audience can, when taken on its own terms, support the
FCC's disapproval of the Carlin monologue. These two asserted
justifications are further plagued by a common failing: the lack of
principled limits on their use as a basis for FCC censorship. No such
limits come readily to mind, and neither of the opinions constituting
the Court serve to clarify the extent to which the FCC may assert the
privacy and children-in-the-audience rationales as justification for
expunging from the airways protected communications the Commission
finds offensive. Taken to their logical extreme, these rationales
would support the cleansing of public radio of any "four-letter
words" whatsoever, regardless of their context. The rationales could
justify the banning from radio of a myriad of literary works, novels,
poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben
Johnson, Henry Fielding, Robert Burns, and Chaucer; they could
support the suppression of a good deal of political speech, such as
the Nixon tapes; and they could even provide the basis for imposing
sanctions for the broadcast of certain portions of the
Bible.[fn5]

In order to dispel the specter of the possibility of so
unpalatable a degree of censorship, and to defuse Pacifica's
overbreadth challenge, the FCC insists that it desires only the
authority to reprimand a broadcaster on facts analogous to those
present in this case, which it describes as involving "broadcasting
for nearly twelve minutes a record which repeated over and over words
which depict sexual or excretory activities and organs in a manner
patently offensive by its community's contemporary standards in the
early afternoon when children were in the audience." Brief for
Petitioner 45. The opinions of both my Brother POWELL and my Brother
STEVENS take the FCC at its word, and consequently do no more than
permit the Commission to censor the afternoon broadcast of the "sort
of verbal shock treatment," opinion of MR. JUSTICE POWELL, ante, at
757, involved here. To insure that the FCC's regulation of protected
speech does not exceed these bounds, my Brother POWELL is content to
rely upon the judgment of the Commission while my Brother STEVENS
deems it prudent to rely on this Court's ability accurately to assess
the worth of various kinds of speech.[fn6] For my own part,
even accepting that this case is limited to its facts,[fn7] I
would place the responsibility and the right to weed worthless and
offensive communications from the public airways where it belongs and
where, until today, it resided: in a public free to choose those
communications worthy of its attention from a marketplace unsullied
by the censor's hand.

II

The absence of any hesitancy in the opinions of my Brothers POWELL
and STEVENS to approve the FCC's censorship of the Carlin monologue
on the basis of two demonstrably inadequate grounds is a function of
their perception that the decision will result in little, if any,
curtailment of communicative exchanges protected by the First
Amendment. Although the extent to which the Court stands ready to
countenance FCC censorship of protected speech is unclear from
today's decision, I find the reasoning by which my Brethren conclude
that the FCC censorship they approve will not significantly infringe
on First Amendment values both disingenuous as to reality and wrong
as a matter of law.

My Brother STEVENS, in reaching a result apologetically described
as narrow, ante, at 750, takes comfort in his observation that
"[a] requirement that indecent language be avoided will have
its primary effect on the form, rather than the content, of serious
communication," ante, at 743 n. 18, and finds solace in his
conviction that "[t]here are few, if any, thoughts that
cannot be expressed by the use of less offensive language." Ibid. The
idea that the content of a message and its potential impact on any
who might receive it can be divorced from the words that are the
vehicle for its expression is transparently fallacious. A given word
may have a unique capacity to capsule an idea, evoke an emotion, or
conjure up an image. Indeed, for those of us who place an
appropriately high value on our cherished First Amendment rights, the
word "censor" is such a word. Mr. Justice Harlan, speaking for the
Court, recognized the truism that a speaker's choice of words cannot
surgically be separated from the ideas he desires to express when he
warned that "we cannot indulge the facile assumption that one can
forbid particular words without also running a substantial risk of
suppressing ideas in the process." Cohen v. California, 403 U.S., at
26. Moreover, even if an alternative phrasing may communicate a
speaker's abstract ideas as effectively as those words he is
forbidden to use, it is doubtful that the sterilized message will
convey the emotion that is an essential part of so many
communications. This, too, was apparent to Mr. Justice Harlan and the
Court in Cohen.

"[W]e cannot overlook the fact, because it is
well illustrated by the episode involved here, that much
linguistic expression serves a dual communicative function: it
conveys not only ideas capable of relatively precise, detached
explication, but otherwise inexpressible emotions as well. In
fact, words are often chosen as much for their emotive as their
cognitive force. We cannot sanction the view that the
Constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive
function which, practically speaking, may often be the more
important element of the overall message sought to be
communicated." Id., at 25-26.

My Brother STEVENS also finds relevant to his First Amendment
analysis the fact that "[a]dults who feel the need may
purchase tapes and records or go to theaters and nightclubs to hear
[the tabooed] words." Ante, at 750 n. 28. My Brother POWELL
agrees: "The Commission's holding does not prevent willing adults
from purchasing Carlin's record, from attending his performances, or,
indeed, from reading the transcript reprinted as an appendix to the
Court's opinion." Ante, at 760. The opinions of my Brethren display
both a sad insensitivity to the fact that these alternatives involve
the expenditure of money, time, and effort that many of those wishing
to hear Mr. Carlin's message may not be able to afford, and a naive
innocence of the reality that in many cases, the medium may well be
the message.

The Court apparently believes that the FCC's actions here can be
analogized to the zoning ordinances upheld in Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976). For two reasons, it is wrong.
First, the zoning ordinances found to pass constitutional muster in
Young had valid goals other than the channeling of protected speech.
Id., at 71 n. 34 (opinion of STEVENS, J.); id., at 80 (POWELL, J.,
concurring). No such goals are present here. Second, and crucial to
the opinions of my Brothers POWELL and STEVENS in Young opinions,
which, as they do in this case, supply the bare five-person majority
of the Court the ordinances did not restrict the access of
distributors or exhibitors to the market or impair the viewing
public's access to the regulated material. Id., at 62, 71 n. 35
(opinion of STEVENS, J.); id., at 77 (POWELL, J., concurring). Again,
this is not the situation here. Both those desiring to receive
Carlin's message over the radio and those wishing to send it to them
are prevented from doing so by the Commission's actions. Although, as
my Brethren point out, Carlin's message may be disseminated or
received by other means, this is of little consolation to those
broadcasters and listeners who, for a host of reasons, not least
among them financial, do not have access to, or cannot take advantage
of, these other means.

Moreover, it is doubtful that even those frustrated listeners in a
position to follow my Brother POWELL'S gratuitous advice and attend
one of Carlin's performances or purchase one of his records would
receive precisely the same message Pacifica's radio station sent its
audience. The airways are capable not only of carrying a message, but
also of transforming it. A satirist's monologue may be most potent
when delivered to a live audience; yet the choice whether this will
in fact be the manner in which the message is delivered and received
is one the First Amendment prohibits the government from making.

III

It is quite evident that I find the Court's attempt to unstitch
the warp and woof of First Amendment law in an effort to reshape its
fabric to cover the patently wrong result the Court reaches in this
case dangerous as well as lamentable. Yet there runs throughout the
opinions of my Brothers POWELL and STEVENS another vein I find
equally disturbing: a depressing inability to appreciate that in our
land of cultural pluralism, there are many who think, act, and talk
differently from the Members of this Court, and who do not share
their fragile sensibilities. It is only an acute ethnocentric myopia
that enables the Court to approve the censorship of communications
solely because of the words they contain.

"A word is not a crystal, transparent and unchanged, it is the
skin of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is used."
Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.). The words
that the Court and the Commission find so unpalatable may be the
stuff of everyday conversations in some, if not many, of the
innumerable subcultures that compose this Nation. Academic research
indicates that this is indeed the case. See B. Jackson, "Get Your Ass
in the Water and Swim Like Me" (1974); J. Dillard, Black English
(1972); W. Labov, Language in the Inner City: Studies in the Black
English Vernacular (1972). As one researcher concluded,
"[w]ords generally considered obscene like `bullshit' and
`fuck' are considered neither obscene nor derogatory in the
[black] vernacular except in particular contextual situations
and when used with certain intonations." C. Bins, "Toward an
Ethnography of Contemporary African American Oral Poetry," Language
and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press
1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding
the use of the word "motherfucker" commonplace among young radicals
and protesters).

Today's decision will thus have its greatest impact on
broadcasters desiring to reach, and listening audiences composed of,
persons who do not share the Court's view as to which words or
expressions are acceptable and who, for a variety of reasons,
including a conscious desire to flout majoritarian conventions,
express themselves using words that may be regarded as offensive by
those from different socio-economic backgrounds.[fn8] In this
context, the Court's decision may be seen for what, in the broader
perspective, it really is: another of the dominant culture's
inevitable efforts to force those groups who do not share its mores
to conform to its way of thinking, acting, and speaking. See Moore v.
East Cleveland, 431 U.S. 494, 506-511 (1977) (BRENNAN, J.,
concurring).

Pacifica, in response to an FC0C inquiry about its broadcast of
Carlin's satire on "`the words you couldn't say on the public
airways,'" explained that "Carlin is not mouthing obscenities, he is
merely using words to satirize as harmless and essentially silly our
attitudes towards those words." 56 F. C. C. 2d, at 95, 96. In
confirming Carlin's prescience as a social commentator by the result
it reaches today, the Court evinces an attitude toward the "seven
dirty words" that many others besides Mr. Carlin and Pacifica might
describe as "silly." Whether today's decision will similarly prove
"harmless" remains to be seen. One can only hope that it will.

[Footnotes:]

1. Where I refer without differentiation to the actions of "the
Court," my reference is to this majority, which consists of my
Brothers POWELL and STEVENS and those Members of the Court joining
their separate opinions.

2. Even if the monologue appealed to the prurient interest of
minors, it would not be obscene as to them unless, as to them, "the
work, taken as a whole, lacks serious literary, artistic, political,
or scientific value." Miller v. California, 413 U.S. 15, 24 (1973).

3. It may be that a narrowly drawn regulation prohibiting the use
of offensive language on broadcasts directed specifically at younger
children constitutes one of the "other legitimate
proscription[s]" alluded to in Erznoznik. This is so both
because of the difficulties inherent in adapting the Miller
formulation to communications received by young children, and because
such children are "not possessed of that full capacity for individual
choice which is the presupposition of the First Amendment
guarantees." Ginsberg v. New York, 390 U.S. 629, 649-650 (1968)
(STEWART, J., concurring). I doubt, as my Brother STEVENS suggests,
ante, at 745 n. 20, that such a limited regulation amounts to a
regulation of speech based on its content, since, by hypothesis, the
only persons at whom the regulated communication is directed are
incapable of evaluating its content. To the extent that such a
regulation is viewed as a regulation based on content, it marks the
outermost limits to which content regulation is permissible.

4. The opinions of my Brothers POWELL and STEVENS rightly refrain
from relying on the notion of "spectrum scarcity" to support their
result. As Chief Judge Bazelon noted below, "although scarcity has
justified increasing the diversity of speakers and speech, it has
never been held to justify censorship." 181 U.S. App. D.C., at 152,
556 F.2d, at 29 (emphasis in original). See Red Lion Broadcasting Co.
v. FCC, 395 U.S. 367, 396 (1969).

5. See, e. g., I Samuel 25:22: "So and more also do God unto the
enemies of David, if I leave of all that pertain to him by the
morning light any that pisseth against the wall"; II Kings 18:27 and
Isaiah 36:12: "[H]ath he not sent me to the men which sit on
the wall, that they may eat their own dung, and drink their own piss
with you?"; Ezekiel 23:3: "And they committed whoredoms in Egypt;
they committed whoredoms in their youth; there were their breasts
pressed, and there they bruised the teats of their virginity.";
Ezekiel 23:21: "Thus thou calledst to remembrance the lewdnes of thy
youth, in bruising thy teats by the Egyptians for the paps of thy
youth." The Holy Bible (King James Version) (Oxford 1897).

6. Although ultimately dependent upon the outcome of review in
this Court, the approach taken by my Brother STEVENS would not appear
to tolerate the FCC's suppression of any speech, such as political
speech, falling within the core area of First Amendment concern. The
same, however, cannot be said of the approach taken by my Brother
POWELL, which, on its face, permits the Commission to censor even
political speech if it is sufficiently offensive to community
standards. A result more contrary to rudimentary First Amendment
principles is difficult to imagine.

7. Having insisted that it seeks to impose sanctions on radio
communications only in the limited circumstances present here, I
believe that the FCC is estopped from using either this decision or
its own orders in this case, 56 F. C. C. 2d 94 (1975) and 59 F. C. C.
2d 892 (1976), as a basis for imposing sanctions on any public radio
broadcast other than one aired during the daytime or early evening
and containing the relentless repetition, for longer than a brief
interval, of "language that describes, in terms patently offensive as
measured by contemporary community standards for the broadcast
medium, sexual or excretory activities and organs." 56 F. C. C. 2d,
at 98. For surely broadcasters are not now on notice that the
Commission desires to regulate any offensive broadcast other than the
type of "verbal shock treatment" condemned here, or even this "shock
treatment" type of offensive broadcast during the late evening.

8. Under the approach taken by my Brother POWELL, the availability
of broadcasts about groups whose members constitute such audiences
might also be affected. Both news broadcasts about activities
involving these groups and public affairs broadcasts about their
concerns are apt to contain interviews, statements, or remarks by
group leaders andmembers which may contain offensive language to an
extent my Brother POWELL finds unacceptable.

The Court today recognizes the wise admonition that we should
"avoid the unnecessary decision of [constitutional] issues."
Ante, at 734. But it disregards one important application of this
salutary principle the need to construe an Act of Congress so as to
avoid, if possible, passing upon its constitutionality.[fn1]
It is apparent that the constitutional questions raised by the order
of the Commission in this case are substantial[fn2] Before
deciding them, we should be certain that it is necessary to do
so.

The statute pursuant to which the Commission acted, 18 U.S.C. 1464
(1976 ed.),[fn3] makes it a federal offense to utter "any
obscene, indecent, or profane language by means of radio
communication." The Commission held, and the Court today agrees, that
"indecent" is a broader concept than "obscene" as the latter term was
defined in Miller v. California, 413 U.S. 15, because language can be
"indecent" although it has social, political, or artistic value and
lacks prurient appeal. 56 F. C. C. 2d 94, 97-98.[fn4] But
this construction of 1464, while perhaps plausible, is by no means
compelled. To the contrary, I think that "indecent" should properly
be read as meaning no more than "obscene." Since the Carlin monologue
concededly was not "obscene," I believe that the Commission lacked
statutory authority to ban it. Under this construction of the
statute, it is unnecessary to address the difficult and important
issue of the Commission's constitutional power to prohibit speech
that would be constitutionally protected outside the context of
electronic broadcasting.

This Court has recently decided the meaning of the term "indecent"
in a closely related statutory context. In Hamling v. United States,
418 U.S. 87, the petitioner was convicted of violating 18 U.S.C.
1461, which prohibits the mailing of "[e]very obscene, lewd,
lascivious, indecent, filthy or vile article." The Court
"construe[d] the generic terms in [ 1461] to be
limited to the sort of `patently offensive representations or
descriptions of that specific "hard core" sexual conduct given as
examples in Miller v. California.'" 418 U.S., at 114, quoting United
States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7. Thus, the
clear holding of Hamling is that "indecent" as used in 1461 has the
same meaning as "obscene" as that term was defined in the Miller
case. See also Marks v. United States, 430 U.S. 188, 190 (18 U.S.C.
1465).

Nothing requires the conclusion that the word "indecent" has any
meaning in 1464 other than that ascribed to the same word in
1461.[fn5] Indeed, although the legislative history is
largely silent[fn6] such indications as there are support the
view that 1461 and 1464 should be construed similarly. The view that
"indecent" means no more than "obscene" in 1461 and similar statutes
long antedated Hamling. See United States v. Bennett, 24 F. Cas. 1093
(No. 14,571) (CC SDNY 1879); Dunlop v. United States, 165 U.S. 486,
500-501; Manual Enterprises v. Day, 370 U.S. 478, 482-484, 487
(opinion of Harlan,J.).[fn7] And although 1461 and 1464 were
originally enacted separately, they were codified together in the
Criminal Code of 1948 as part of a chapter entitled "Obscenity."
There is nothing in the legislative history to suggest that Congress
intended that the same word in two closely related sections should
have different meanings. See H. R. Rep. No. 304, 80th Cong., 1st
Sess., A104-A106 (1947).

I would hold, therefore, that Congress intended, by using the word
"indecent" in 1464, to prohibit nothing more than obscene
speech.[fn8] Under that reading of the statute, the
Commission's order in this case was not authorized, and on that basis
I would affirm the judgment of the Court of Appeals.

2. The practice of construing a statute to avoid a constitutional
confrontation is followed whenever there is "`a serious doubt'" as to
the statute's constitutionality. E. g., United States v. Rumely, 345
U.S. 41, 45; Blodgett v. Holden, 275 U.S. 142, 148 (opinion of
Holmes, J.). Thus, the Court has construed a statute to avoid raising
a doubt as to its constitutionality even though the Court later in
effect held that the statute, otherwise construed, would have been
constitutionally valid. Compare General Motors Corp. v. District of
Columbia, 380 U.S. 553, with Moorman Mfg. Co. v. Bair, 437 U.S.
267.

3. The Court properly gives no weight to the Commission's passing
reference in its order to 47 U.S.C. 303 (g). Ante, at 739 n. 13. For
one thing, the order clearly rests only upon the Commission's
interpretation of the term "indecent" in 1464; the attempt by the
Commission in this Court to assert that 303 (g) was an independent
basis for its action must fail. Cf. SEC v. Chenery Corp., 318 U.S.
80, 94-95; SEC v. Sloan, 436 U.S. 103, 117-118. Moreover, the general
language of 303 (g) cannot be used to circumvent the terms of a
specific statutory mandate such as that of 1464. "[T]he
Commission's power in this respect is limited by the scope of the
statute. Unless the [language] involved here [is]
illegal under [1464], the Commission cannot employ the
statute to make [it] so by agency action." FCC v. American
Broadcasting Co., 347 U.S. 284, 290.

4. The Commission did not rely on 1464's prohibition of "profane"
language, and it is thus unnecessary to consider the scope of that
term.

5. The only Federal Court of Appeals (apart from this case) to
consider the question has held that "`obscene' and `indecent' in 1464
are to be read as parts of a single proscription, applicable only if
the challenged language appeals to the prurient interest." United
States v. Simpson, 561 F.2d 53, 60 (CA7).

6. Section 1464 originated as part of 29 of the Radio Act of 1927,
44 Stat. 1172, which was re-enacted as 326 of the Communications Act
of 1934, 48 Stat. 1091. Neither the committee reports nor the floor
debates contain any discussion of the meaning of "obscene, indecent
or profane language."

8. This construction is further supported by the general rule of
lenity in construing criminal statutes. See Adamo Wrecking Co. v.
United States, 434 U.S. 275, 285. The Court's statement that it need
not consider the meaning 1464 would have in a criminal prosecution,
ante, at 739 n. 13, is contrary to settled precedent:

"It is true . . . that these are not criminal cases, but
it is a criminal statute that we must interpret. There cannot be
one construction for the Federal Communications Commission and
another for the Department of Justice. If we should give
[1464] the broad construction urged by the Commission, the
same construction would likewise apply in criminal cases." FCC v.
American Broadcasting Co., supra, at 296.

Appendix to Opinion of the Court

The following is a verbatim transcript of "Filthy Words" prepared
by the Federal Communications Commission.

Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words
and the swear words, the cuss words and the words that you can't say,
that you're not supposed to say all the time, [']cause words
or people into words want to hear your words. Some guys like to
record your words and sell them back to you if they can, (laughter)
listen in on the telephone, write down what words you say. A guy who
used to be in Washington knew that his phone was tapped, used to
answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking
one night about the words you couldn't say on the public, ah,
airwaves, um, the ones you definitely wouldn't say, ever,
[']cause I heard a lady say bitch one night on television,
and it was cool like she was talking about, you know, ah, well, the
bitch is the first one to notice that in the litter Johnie right
(murmur) Right. And, uh, bastard you can say, and hell and damn so I
have to figure out which ones you couldn't and ever and it came down
to seven but the list is open to amendment, and in fact, has been
changed, uh, by now, ha, a lot of people pointed things out to me,
and I noticed some myself. The original seven words were, shit, piss,
fuck, cunt, cocksucker, mother-fucker, and tits. Those are the ones
that will curve your spine, grow hair on your hands and (laughter)
maybe, even bring us, God help us, peace without honor (laughter) um,
and a bourbon. (laughter) And now the first thing that we noticed was
that word fuck was really repeated in there because the word
motherfucker is a compound word and it's another form of the word
fuck. (laughter) You want to be a purist it doesn't really it can't
be on the list of basic words. Also, cocksucker is a compound word
and neither half of that is really dirty. The word the half sucker
that's merely suggestive (laughter) and the word cock is a half-way
dirty word, 50% dirty dirty half the time, depending on what you mean
by it. (laughter) Uh, remember when you first heard it, like in 6th
grade, you used to giggle. And the cock crowed three times, heh
(laughter) the cock three times. It's in the Bible, cock in the
Bible. (laughter) And the first time you heard about a cock-fight,
remember What? Huh? naw. It ain't that, are you stupid? man.
(laughter, clapping) It's chickens, you know, (laughter) Then you
have the four letter words from the old Anglo-Saxon fame. Uh, shit
and fuck. The word shit, uh, is an interesting kind of word in that
the middle class has never really accepted it and approved it. They
use it like, crazy but it's not really okay. It's still a rude,
dirty, old kind of gushy word. (laughter) They don't like that, but
they say it, like, they say it like, a lady now in a middle-class
home, you'll hear most of the time she says it as an expletive, you
know, it's out of her mouth before she knows. She says, Oh shit oh
shit, (laughter) oh shit. If she drops something, Oh, the shit hurt
the broccoli. Shit. Thank you. (footsteps fading away) (papers
ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album.
Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank
you. Thank you man. Yeah. (murmur) (continuous clapping) Thank you
man. Thank you. Thank you very much, man. Thank, no, (end of
continuous clapping) for that and for the Grammy, man,
[']cause (laughter) that's based on people liking it man,
yeh, that's ah, that's okay man. (laughter) Let's let that go, man. I
got my Grammy. I can let my hair hang down now, shit. (laughter) Ha!
So! Now the word shit is okay for the man. At work you can say it
like crazy. Mostly figuratively, Get that shit out of here, will ya?
I don't want to see that shit anymore. I can't cut that shit, buddy.
I've had that shit up to here. I think you're full of shit myself.
(laughter) He don't know shit from Shinola. (laughter) you know that?
(laughter) Always wondered how the Shinola people felt about that
(laughter) Hi, I'm the new man from Shinola. (laughter) Hi, how are
ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't
know whether to shit or wind my watch. (laughter) Guess, I'll shit on
my watch. (laughter) Oh, the shit is going to hit de fan. (laughter)
Built like a brick shit-house. (laughter) Up, he's up shit's creek.
(laughter) He's had it. (laughter) He hit me, I'm sorry. (laughter)
Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating
grin. Uh, whoever thought of that was ill. (murmur laughter) He had a
shit-eating grin! He had a what? (laughter) Shit on a stick.
(laughter) Shit in a handbag. I always like that. He ain't worth shit
in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You
know what I mean? (laughter) I got the money back, but a real shitty
attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew!
Glad I wasn't there. (murmur, laughter) All the animals Bull shit,
horse shit, cow shit, rat shit, bat shit. (laughter) First time I
heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said
it, man. Aw! Bat shit. (laughter) Vera reminded me of that last
night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get
your shit together. Shit or get off the pot. (laughter) I got a
shit-load full of them. (laughter) I got a shit-pot full, all right.
Shit-head, shit-heel, shit in your heart, shit for brains, (laughter)
shit-face, heh (laughter) I always try to think how that could have
originated; the first guy that said that. Somebody got drunk and fell
in some shit, you know. (laughter) Hey, I'm shit-face. (laughter)
Shit-face, today. (laughter) Anyway, enough of that shit. (laughter)
The big one, the word fuck that's the one that hangs them up the
most. [']Cause in a lot of cases that's the very act that
hangs them up the most. So, it's natural that the word would, uh,
have the same effect. It's a great word, fuck, nice word, easy word,
cute word, kind of. Easy word to say. One syllable, short u.
(laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice
soft sound fuh ends with a kuh. Right? (laughter) A little something
for everyone. Fuck (laughter) Good word. Kind of a proud word, too.
Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter)
Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an
interesting word too, [']cause it's got a double kind of a
life personality dual, you know, whatever the right phrase is. It
leads a double life, the word fuck. First of all, it means,
sometimes, most of the time, fuck. What does it mean? It means to
make love. Right? We're going to make love, yeh, we're going to fuck,
yeh, we're going to fuck, yeh, we're going to make love. (laughter)
we're really going to fuck, yeh, we're going to make love. Right? And
it also means the beginning of life, it's the act that begins life,
so there's the word hanging around with words like love, and life,
and yet on the other hand, it's also a word that we really use to
hurt each other with, man. It's a heavy. It's one that you have
toward the end of the argument. (laughter) Right? (laughter) You
finally can't make out. Oh, fuck you man. I said, fuck you.
(laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody
that looks like you. (laughter) man. It would be nice to change the
movies that we already have and substitute the word fuck for the word
kill, wherever we could, and some of those movie cliches would change
a little bit. Madfuckers still on the loose. Stop me before I fuck
again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck
the ump. Easy on the clutch Bill, you'll fuck that engine again.
(laughter) The other shit one was, I don't give a shit. Like it's
worth something, you know? (laughter) I don't give a shit. Hey, well,
I don't take no shit, (laughter) you know what I mean? You know why I
don't take no shit? (laughter) [']Cause I don't give a shit.
(laughter) If I give a shit, I would have to pack shit. (laughter)
But I don't pack no shit cause I don't give a shit. (laughter) You
wouldn't shit me, would you? (laughter) That's a joke when you're a
kid with a worm looking out the bird's ass. You wouldn't shit me,
would you? (laughter) It's an eight-year-old joke but a good one.
(laughter) The additions to the list. I found three more words that
had to be put on the list of words you could never say on television,
and they were fart, turd and twat, those three. (laughter) Fart, we
talked about, it's harmless It's like tits, it's a cutie word, no
problem. Turd, you can't say but who wants to, you know? (laughter)
The subject never comes up on the panel so I'm not worried about that
one. Now the word twat is an interesting word. Twat! Yeh, right in
the twat. (laughter) Twat is an interesting word because it's the
only one I know of, the only slang word applying to the, a part of
the sexual anatomy that doesn't have another meaning to it. Like, ah,
snatch, box and pussy all have other meanings, man. Even in a Walt
Disney movie, you can say, We're going to snatch that pussy and put
him in a box and bring him on the airplane. (murmur, laughter)
Everybody loves it. The twat stands alone, man, as it should. And
two-way words. Ah, ass is okay providing you're riding into town on a
religious feast day. (laughter) You can't say, up your ass.
(laughter) You can say, stuff it! (murmur) There are certain things
you can say its weird but you can just come so close. Before I cut,
I, uh, want to, ah, thank you for listening to my words, man, fellow,
uh space travelers. Thank you man for tonight and thank you also.
(clapping whistling)